A/HRC/47/26 32. The Committee against Torture developed jurisprudence according to which rape, when perpetrated by public officials, at their instigation or with their consent or acquiescence, constitutes torture.31 33. The Committee on the Elimination of Discrimination against Women, in its Views adopted in 2010 on the landmark rape case Vertido v. Philippines,32 concluded that myths and stereotypes regarding rape had affected the victim’s right to a fair trial. In particular, the trial judge had focused on the personality and behaviour of the victim, and taken the lack of evidence of physical resistance by the victim as an indication of consent. The Committee established that a victim should not be expected to physically resist in order to credibly report rape. 34. The Committee recommended that the Philippines review the definition of rape in its legislation so as to place the lack of consent at its centre, and enact a definition of sexual assault that either required the existence of “unequivocal and voluntary agreement” and proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting, or required that the act take place in “coercive circumstances” and included a broad range of coercive circumstances. 35. Those legal advancements were capitalized on and codified and further developed in the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), adopted in 2011.33 The Istanbul Convention contains the first legally binding definition of sexual violence, including rape. Under article 36, States parties commit to criminalizing the intentional conduct of engaging in nonconsensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object. This article also provides that consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances, and that States parties must ensure that the criminalization provisions also apply to acts committed against former or current spouses or partners as recognized by internal law. As noted in the explanatory report to the Convention, this definition establishes the obligation to criminalize and effectively prosecute any non-consensual sexual act, including in the absence of physical resistance by the victim. 36. In 2017, the Committee on the Elimination of Discrimination against Women adopted its general recommendation No. 35 (2017) on gender-based violence against women, which had been prepared in collaboration with the Special Rapporteur. The Committee and the Special Rapporteur specifically recommended that States parties ensure that rape was characterized as a crime against the right to personal security and physical, sexual and psychological integrity, and that the definition of rape, including marital rape, was based on the lack of consent and took into account coercive circumstances. It also established that any time limitations, where they existed, should give consideration to circumstances hindering the capacity of the victims to report the crime, and that rape could amount to torture. B. Evolution of international humanitarian and criminal law 37. Throughout human history, rape has been perceived as an inevitable part of conflict, resulting in its social and legal acceptance as an attribute and tool of war. The Charter of the International Military Tribunal (Nuremberg), adopted after the Second World War, did not identify rape as a war crime or crime against humanity, demonstrating that rape in conflict was not perceived as a significant and specific crime that required consideration by the Nuremberg Tribunal. In a similar manner, the Charter of the International Military Tribunal for the Far East (Tokyo) did not list rape as a war crime or crime against humanity, although 31 32 33 See V.L. v. Switzerland (CAT/C/37/D/262/2005) and C.T. and K.M. v. Sweden (CAT/C/37/D/279/2005). CEDAW/C/46/D/18/2008. See Dubravka Šimonović, “Global and regional standards on violence against women: the evolution and synergy of the CEDAW and Istanbul Conventions”, Human Rights Quarterly, vol. 36, No. 3 (August 2014), pp. 590–606. 7